R v Perre - [2019] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PERRE
[2019] SASCFC 100
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Doyle)
14 August 2019
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY
CRIMINAL LAW - PROCEDURE - JURIES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
This is an application for permission to appeal against a decision of the District Court to refuse to grant either a temporary or permanent stay of the prosecution of the application for offences under the Controlled Substances Act 1984 (SA) and the Firearms Act 1977 (SA).
For over 20 years, the applicant has been the subject of adverse media publicity concerning various criminal proceedings against him, and his alleged connection to organised crime. In particular, the applicant has been reported as a suspect in the 1994 bombing of the Adelaide offices of the National Crime Authority (NCA), which resulted in the death of Detective Sergeant Jeffrey Bowen and serious injury to solicitor Peter Wallis. The applicant submits that no safeguard can alleviate the prejudice arising as a result of this media publicity.
Held, per Parker J (Nicholson and Doyle JJ agreeing), granting permission to appeal but dismissing the appeal:
1. The Judge did not fail to take into account all relevant documents contained in Exhibit JN2 (which contained the published material upon which the applicant relies) (at [82]).
2. In refusing to grant a permanent stay, the Judge correctly stated the relevant principles expressed by Doyle CJ in R v McGee and by the High Court in R v Glennon (at [40], [44], [84]).
3. The adverse publicity received by the applicant is far removed from being an extreme or exceptional case of the type referred to by the High Court in R v Glennon and in Jago v District Court of New South Wales (at [91]-[97]).
4. The Judge was correct in the confidence he expressed in the operation of the jury system (at [98]).
5. The procedural steps surrounding the selection of the jury and the directions canvassed by the Judge should be more than sufficient to ensure that, notwithstanding the prejudice arising from the published material, the applicant will receive a fair trial and that there will not be an abuse of process (at [99]-[100]).
6. The Judge did not err in refusing to grant a permanent or temporary stay of the prosecution (at [101]-[103]).
Criminal Procedure Act 1921 (SA) ss 112, 157; Controlled Substances Act 1984 (SA) ss 32, 33B; Firearms Act 1977 (SA) ss 11, 29A; Juries Act 1927 (SA) ss 6A, 7; Sentencing Act 2017 (SA) s 47, referred to.
R v McGee (2008) 102 SASR 318; R v Glennon (1992) 173 CLR 592; Jago v District Court of New South Wales (1989) 168 CLR 23; Hinch v Attorney-General (Vic) (1987) 164 CLR 15; Murphy v The Queen (1989) 167 CLR 94, applied.
X7 v Australian Crime Commission (2013) 248 CLR 92; Dupas v The Queen (2010) 241 CLR 237; R v B, GN (2014) 121 SASR 43; R v Connell (No 3) (1993) 8 WAR 542; R v Carroll (2002) 213 CLR 635; Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; House v The King (1936) 55 CLR 499; R v Koppen (1975) 11 SASR 182; Williams v Spautz (1992) 174 CLR 509; Herron v McGregor (1986) 6 NSWLR 246; Rona v District Court of South Australia (1995) 63 SASR 223; Walton v Gardiner (1993) 177 CLR 378; R v Mokbel (2009) 26 VR 618; R v Ferguson (2008) 186 A Crim R 483; R v Milat (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 26 February 1998), considered.

R v PERRE
[2019] SASCFC 100
Court of Criminal Appeal: Nicholson, Parker and Doyle JJ

NICHOLSON J: On 18 June 2019, this Court made orders granting the appellant permission to appeal but dismissing the appeal with reasons to be published in due course. I joined in those orders of the Court and did so for the reasons now given by Parker J.
PARKER J: This is an application for permission to appeal, pursuant to s 157(1)(d)(i) of the Criminal Procedure Act 1921 (SA), against a decision adverse to the applicant made by the District Court on an issue antecedent to trial. The subject of the adverse decision was the refusal by a judge to grant either a temporary stay or a permanent stay of the prosecution of the applicant for certain offences under the Controlled Substances Act 1984 (SA) and the Firearms Act 1977 (SA).
On 18 June 2019, the Court granted permission to appeal but dismissed the appeal with reasons to be published later. These are the reasons.
The amended grounds of appeal
The amended grounds of appeal advanced by the applicant are as follows:
1.   The Learned Trial Judge erred in failing to take into account material relevant to the applications.
Particulars
1.1The Learned Trial Judge mistakenly restricted the factual basis in support of the applications to 22 items within exhibit JPN1.
2.   The Learned Trial Judge erred in declining to order a permanent stay of proceedings.
3.   The Learned Trial Judge erred in declining to order a temporary stay of proceedings.
Background
On 2 March 1994 a parcel bomb exploded at the Adelaide offices of the National Crime Authority (NCA). Detective Sergeant Geoffrey Bowen was killed and a solicitor, Peter Wallis, was seriously injured. At that time, the two men were working for the NCA.
On 11 March 1994, the applicant was arrested and charged with the murder of Detective Sergeant Bowen and the attempted murder of Mr Wallis. The applicant was committed for trial in the Supreme Court following a preliminary hearing in the Magistrates Court. However, on 9 September 1994 the Director of Public Prosecutions entered a nolle prosequi in relation to both charges. In September 1999, following an inquest, the State Coroner found that the applicant was responsible for the death of Detective Sergeant Bowen and the injury to Mr Wallis.
On 1 March 2018, the applicant was again arrested and charged with the murder of Detective Sergeant Bowen and the attempted murder of Mr Wallis. The committal proceedings are at a preliminary stage in the Magistrates Court. The applicant has foreshadowed a request for the oral examination of witnesses pursuant to s 112(2) of the Criminal Procedure Act. It is expected that the trial of the applicant in the Supreme Court on the murder and attempted murder charges will not occur until sometime in 2020 at the earliest.
In September 1993, Northern Territory police found a crop of cannabis comprising 10,000 plants at a remote location, Hidden Valley. While the police were at the site, a detective took a telephone call. The caller identified himself by name as the applicant, Domenic Perre. When he realised he was speaking to a police officer, he allegedly made a death threat.
In July 1997, the applicant was sentenced to imprisonment for six years, with a non-parole period of three years, following his conviction in South Australia for offences arising from the production of amphetamines. A media report stated that the applicant had informed the Court that he had committed this offence because he was insolvent due to the costs incurred in defending himself against the NCA bombing charge and the Northern Territory cannabis crop charges.
In March 1998, the applicant was sentenced in the Northern Territory to imprisonment for four years upon conviction for drug offences. Two years of that sentence was made concurrent with the sentence that the applicant was then serving in South Australia for the methamphetamine offence.
The preceding matters have been the subject of substantial media publicity over the years. The applicant seeks a permanent stay based on the contention that the nature and extent of the adverse publicity would deprive him of a fair trial and amount to an abuse of process. Alternatively, he seeks a temporary stay pending the outcome of the NCA bombing trial.
The applicant contends that because of the significant and long‑term publication of adverse material about him, much of which is directed at drug related offending, there would be a general understanding in the community that he is a person of ill repute. He also submits that the effect has been compounded by the extensive publication of allegations referring to his involvement in the NCA bombing.
The District Court charges
The applicant has been charged with three counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act. He has also been charged with one count of cultivating controlled plants for sale, contrary to s 33B(3) of the Controlled Substances Act. The applicant has been further charged with several offences under the Firearms Act. Those offences are two counts of possessing a firearm without a licence (s 11(1)) and one count of possessing a silencer (s 29A).
The published material
The published material upon which the applicant relies in support of his stay applications is contained in Exhibit JN2 to an affidavit sworn by the applicant’s solicitor on 4 April 2019. The Judge noted that this material had been supplied to the applicant by the Director of Public Prosecutions. The material had been compiled by the police because they wished to have a historical record of the information that was in the public domain about the applicant.
The Judge noted that the survey of published material conducted by the police was very broadly based, and went well beyond documents in the public domain that identify the applicant. His Honour noted that the material included anything that might have been thought at one time to have some connection to the NCA matter although the applicant was not named. His Honour also considered that there was a high level of surmise and conjecture involved in the gathering of the material, but that had no doubt occurred due to the broad-based nature of the survey.
The Judge also noted that, during the period from November 1999 to May 2015, the police had not been able to locate any material referring to the applicant in connection with the NCA bombing or drug offences.
Approximately 150 articles included in JN2 were published between March 1994 and August 2000 in South Australia. By that I mean that an article was published in either the Advertiser, the Sunday Mail or the Australian. A high proportion of those articles mentioned the applicant by name. Most of the material related to the NCA bombing allegation, although there was also a substantial number of articles that referred to the involvement of the applicant in proceedings relating to drug offences.
Included in JN2 are copies of many articles published in metropolitan and regional newspapers in Western Australia. These comprise material published in the Perth morning newspaper, the West Australian, and the Sunday Times and also articles published in the South Western Times and the Leschenault Reporter.[1] I infer that the interest of the Western Australia media arose because Detective Sergeant Bowen was a member of the Western Australia police who had been seconded to work with the NCA.
[1] The Leschenault area is located in the South West of Western Australia near Bunbury.
The material included in JN2 also included articles published in the Northern Territory, Victoria and the Australian Capital Territory in the period from 1993 to 1996.
A significant portion of the articles made no mention of the applicant. In fact, in a number of instances it is not apparent from the content why the police included the material in their compilation.
The Judge included in his reasons a detailed description of 21 documents identified by the applicant. A 22^nd item was not described in detail as the Judge considered that it was largely repetitive. His Honour stated that he had read all of the material contained in Exhibit JN2 and was familiar with the contents. He took into account every document contained in JN2 that he considered to be relevant and not merely the documents that had specifically been identified by the applicant in his submissions.
The documents listed by the Judge at 1 to 13 were published between 1993 and 1999. One of those documents was published in the Northern Territory and another in Western Australia. The other 11 of these 13 documents were published in the Advertiser. The majority of the press reports refer to the allegation that the applicant was responsible for the NCA bombing and a smaller number referred to the drug matters upon which the applicant was convicted in South Australia and the Northern Territory. Some of the articles referred to both the NCA bombing allegation and the drug convictions. Not all of the articles published between 1993 and 1999 are entirely unfavourable to the applicant. Thus, for example, a report published in the Advertiser on 3 August 1994 reports a suggestion by the applicant that a particular gunsmith had been responsible for the NCA bombing.
After a long hiatus from 2000 onwards, there was a very small number of articles referring to the applicant published in South Australia between 2007 and 2014. The articles generally referred to the anniversary of the death of Detective Sergeant Bowen and most did not mention the applicant.
The Judge noted that it was uncertain as to whether the document marked 14 had been published on 21 June 2013 or 6 May 2015. The article concerned a call by the widow of Detective Sergeant Bowen for a prosecution, and also discussed a book written by Michael Madigan about the NCA bombing. The applicant was not mentioned.
Material referring adversely to the applicant commenced to be published more frequently from 2016. The documents numbered 15 to 21 were published in the period from 6 March 2016 to 24 January 2018. Each of these reports was published in the Advertiser or the Sunday Mail and referred to the alleged involvement of the applicant in the NCA bombing. Four of the six documents referred to the applicant as “NCA bombing suspect Domenic Perre”.
On 6 March 2016, the document numbered 15 by the Judge was published in the Sunday Mail. This was a two-page article entitled “Mob Rule”.[2] The text was accompanied by a large photograph of the applicant handcuffed and being held by two uniformed police officers, apparently after he was arrested for the NCA bombing. The article referred generally to crimes allegedly committed by persons who were said to be Mafia (or ’Ndrangheta)[3] members, and then went on to discuss the history of the applicant’s involvement in proceedings relating to the NCA bombing and the finding by the State Coroner that the applicant was responsible. The article concluded with a further discussion of crimes allegedly committed by persons said to be associated with ’Ndrangheta and alleged that ’Ndrangheta had formed an alliance with certain outlaw motorcycle gangs. While the applicant is not named as a member of the Mafia or ’Ndrangheta, it is arguable that some readers might infer from the article that such a connection may exist. On the other hand, the article also includes suggestions that persons other than the applicant may have been responsible for the NCA bombing.
[2] The version of the article included in JN2 was actually published on the Advertiser website.
[3] The Calabrian branch of the Mafia is often referred to as ’Ndrangheta.
Broadly similar to the “Mob Rule” article was one published in the Sunday Mail on 30 October 2016 (numbered 16) entitled “Records shed new light on NCA suspect’s family”. The article was largely based on the content of a previously suppressed transcript of a bail hearing held before Kearney J in the Northern Territory Supreme Court in about 1993 or 1994. The applicants for bail were persons charged in relation to the Hidden Valley cannabis crop. The article focussed on the applicant’s family, particularly his uncle Antonio Perre,[4] and also mentioned concern expressed by Kearney J about Mafia activity. There was a reference to the fact that the applicant had been charged with the NCA bombing and that the charges had later been discontinued. The adverse finding by the State Coroner was also mentioned. The article indicated that the applicant had been acquitted of a charge of conspiracy in relation to the Hidden Valley cannabis crop. No mention was made of his other drug convictions.
[4] The article reports that Antonio Perre was deported from Australia in 1994.
Newspaper articles dated 11 March 2017 and 15 June 2017 (numbered 19 and 20 respectively) referred to the fact that the brother of the applicant had been charged in relation to the drug offences that are currently before the District Court and also that the applicant had been charged.[5] A report in the Advertiser on 10 March 2017 (numbered 18) stated that the son of the applicant, Anthony Perre, had been charged in relation to the discovery of an underground drug growing bunker at his home. He was described as “the son of NCA bombing suspect Domenic Perre”.
[5] The applicant’s brother, Francesco Perre, has pleaded guilty to certain offences.
Leaving aside the “Mob Rule” and “Records shed new light on NCA suspect’s family” articles published in 2016, the articles published prior to 15 June 2017 reported only that the police were pursuing new lines of enquiry in relation to the NCA bombing, and that the applicant’s son had been charged with drug offences. Several of these articles referred to the applicant as the “NCA bombing suspect” or the like. However, none of the articles suggested that the applicant had a history of drug offending. Some of the articles referred to the death of Bruno Romeo, who was described as a “Mafia kingpin”. An article published in the Advertiser on 1 November 2016 (numbered 17) noted that “NCA bombing suspect Domenic Perre” was related by marriage to Mr Romeo and was expected to attend his funeral.
The fact that the applicant had been arrested on the present drugs charges was the subject of a detailed article in the Advertiser Online on 15 June 2017 (numbered 20). The article was accompanied by a photograph taken at the time of the applicant’s arrest in relation to the NCA matter in 1994. The article did not refer to previous drug charges against the applicant, nor did it link the NCA bombing with drug offending.
An article published on 25 January 2018 (numbered 21) in the Advertiser suggests that the alleged drug offending currently before the District Court was discovered as a side-effect of the renewed investigation of the NCA bombing. However, that is a different matter to the suggestion that the bombing was linked to drug offending by the applicant.
The latter suggestion was included in an article published in the Melbourne Herald Sun on 25 January 2018. With the exception of that article published in Victoria, none of the articles published over the last several years suggest that the motive for the NCA bombing was the investigation of the applicant for drug offending. It is also the case that none of the articles published over recent years mention the applicant’s prior convictions for drug offending.
The Judge’s reasons
After referring in detail to the articles specifically identified by the applicant, and noting that he had also read and taken into account the entirety of the relevant material included in JN2, the Judge identified what he described as “the following themes and matters” in the published material as being relevant to his decision:
1.   that since 1994, Domenic Perre is a person suspected of being responsible for the NCA bombing;
2.   as the person suspected of being responsible for the NCA bombing, Domenic Perre may at some time be charged with offences connected with that event;
3.   that having been charged with that act, the prosecution entered a nolle prosequi on the charges soon thereafter because the Director of Public Prosecutions was not satisfied that there was sufficient evidence to be put before the jury;
4.   that if further evidence came to light about the NCA matter involving Domenic Perre, then it was possible for him to be again charged with the same offences;
5.   that before and after 1994, Domenic Perre has committed a number of drug related offences either alone or in company with other persons and also as part of a syndicate of persons involved in drug related criminal activity; and
6.   that Domenic Perre has on occasion been incarcerated for these drug related crimes.

In addition to those matters, the Judge noted that the applicant had been consistently referred to as the “NCA bombing suspect” even though the charges against him had been withdrawn in October 1994. Newspaper reports also continued to refer to the connection of the applicant with the NCA matter even though the reports did not, generally, concern that issue.
The Judge also accepted that the past drug offending by the applicant had attracted greater notoriety because the reporting had associated his drug offending with the NCA matter. However, there was no evidence that his notoriety in relation to drug matters would remain at the forefront of the minds of average members of the public. His Honour stated that he did not need to resolve that issue but accepted that the consistency of the reporting of the NCA matter had, to an extent, kept that matter in the forefront of the minds of the general public. His Honour also accepted that the recent publicity about the charges of alleged drug offending had coincided with publicity that the applicant had been again charged with the NCA bombing.
The Judge stated that the weakness in the applicant’s contention that there was a compounding effect arising from the linking of his name with the allegations about the NCA bombing was that it did not take account of the lapse of memories over time. The bulk of the material that referred to the applicant in relation to drug related matters that also mentioned the NCA matter had been published between almost 20 and 26 years ago. The more recently published material did not mention past drug related issues. It was only the historical material that referred to both the NCA matter and drug related offending.
The more recent material had consistently concerned two matters. They were the identification of the applicant as a person charged or convicted of drug related offences, and that he was a suspect in the NCA matter. From 2018 the reports had changed so as to report that the applicant had again been charged with murder and attempted murder.
The Judge also identified a number of articles favourable to the applicant. These included an item which suggested that the case brought against the applicant in relation to the NCA bombing could never have succeeded. There were also articles which suggested that other persons were suspects in that matter. His Honour also observed that some of the material contained in JN2 did not refer to the applicant.
The Judge specifically took into account the applicant’s submission that if it were possible to elect for trial by judge alone this would have assuaged some of his concerns.[6]
[6] R v Von Einem (1991) 55 SASR 199 at 219 (Duggan J).
The Judge summarised the principles applicable to stay applications that were stated by Doyle CJ in R v McGee[7] and by the High Court in R v Glennon[8] as follows:
[7] (2008) 102 SASR 318.
[8] (1992) 173 CLR 592.
1.   The grant of stay requires a finding that there is a serious risk that an accused will not get a fair trial because of the effect of the publicity which must give rise to an unacceptable and significant risk that a fair trial is precluded;
2.   If there has been a sustained media campaign against a particular defendant and the court is of the opinion that thorough directions will not safeguard against impermissible prejudice and prejudgment by the jury, the court has power to stay the proceedings;[9]
3.   It is not possible to define categories of cases which will attract a favourable exercise of the court’s discretion; these are all questions of fact judged according to contemporary values and circumstances;[10]
4.   The issue of primacy is the safeguarding of the administration of justice and so courts will not allow their processes to be used in a manner giving rise to injustice. The touchstone is always to ensure that the court exercises its powers to ensure fairness;[11]
5.   There are two steps involved namely:-
a.is there any unfairness, injustice, prejudice or oppression established sufficient to enliven the power to stay proceedings? The court will give consideration to any mechanism available to it to redress or neutralise the complaints made by Domenic Perre but always with the intention of preserving the institutional integrity of the court;[12]
b.the court is required to balance the interest of justice including fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes and the need to maintain public confidence in the administration of justice;[13] and
6.   In this balancing exercise, fairness remains the touchstone and issues of fairness will vary according to the particular facts of the matter.
(Footnotes in original)
[9]    R v Glennon (1992) 173 CLR 592 at 623.
[10] Jago v District Court (NSW) (1989) 168 CLR 23 at 74.
[11] X7 v Australian Crime Commission (2013) 248 CLR 92 at [38].
[12] Dupas v The Queen (2010) 241 CLR 237 at 248-250.
[13] R v B, GN (2014) 121 SASR 43 at [31].
The Judge stated that courts regularly deal with situations similar to that of the applicant in determining whether there can be a fair trial. His Honour also noted that pre-trial publicity, whether in its traditional form or through the many forms of social media now available, may create some type of unrecognised bias, but that is no different to the unrecognised bias to which the High Court referred in Glennon.
The Judge stated that he was required to balance the interests of justice, fairness to the accused and the legitimate public interest in the disposition of charges with serious offences. The courts have developed a number of methods to overcome the risk of unfairness and he would adopt those methods in this case.
The Judge was satisfied that jurors display the qualities described by Seaman J in R v Connell (No 3).[14] In that context his Honour noted that the experience of the District Court was that juries approach their task with a great sense of responsibility, understand the directions that are given to them and actively seek assistance where necessary. Additionally, the experience of the District Court is also that members of the jury panel are very forthcoming when direct questions about their impartiality are put to them at the empanelment stage. Because jurors take their responsibilities very seriously, they remain alert to the whole process and seek assistance if events arise that threaten that process.
[14] (1993) 8 WAR 542 at 559 (Seaman J).
The Judge identified nine principles concerning juries that he had drawn from the judgment of Doyle CJ in McGee. Those principles were:
1.   Jurors will acquire knowledge about a trial before or during a trial other than from the evidence put before them;[15]
2.   The capacity of jurors to decide a case fairly upon the evidence before them is not to be underestimated and courts are entitled to and will rely upon the integrity of jurors;[16]
3.   Courts are entitled to rely upon the impact that individual jurors will have upon each other as the trial progresses and the evidence develops and that individual jurors will in that process become exposed to the collective fairness and judgment of the whole group of jurors;[17]
4.   Jurors will bring to their task a broad range of life experiences and so also will they bring particular preconceptions, attitudes and biases that are not necessarily recognised by them or easily displaced. These may in some proportion assist the prosecution or the defence;[18]
5.   The system of trial by jury relies heavily upon the directions of the trial judge and their impact upon jurors as well as the preparedness of each member of the jury, separately and collectively, to reach a true result all in the context of the fairness of a criminal trial;[19]
6.   Because of the notoriety of the NCA matter and the association of the name of Domenic Perre with that matter, there may be a conscious or subconscious bias against him generally and perhaps most likely in the context of that particular matter which will be hard to displace;[20]
7.   The community from which jurors are drawn consists of people with attitudes that are both favourable and unfavourable. It has always been so and this is the environment in which the process of trial by jury has always operated;[21]
8.   Within the process of a jury trial there are many steps that can and should be taken as protective measures in light of the reality of the broad range of attitudes prevalent in the community;[22]
9.   Even though it is accepted that people may well hold predisposing attitudes about a defendant, it cannot be presumed that such persons are incapable of both recognising and allowing for them. Jurors are required to function as a group. There is “…good reason to think that the process of the trial and the experience of each juror as a member of the jury will have a further corrective effect on any prejudgment or predisposition…”[23]
(Footnotes in original)
[15] [R v McGee (2008) 102 SASR 318] at [147].
[16] Ibid at [148].
[17] Ibid at [148].
[18] Ibid at [149].
[19] Ibid at [150].
[20] Ibid at [155].
[21] Ibid at [156]-[157].
[22] Ibid at [160]-[165].
[23] Ibid at [167]-[168].
The Judge was satisfied that the Court can and should rely with great confidence upon the integrity of jurors, their willingness to observe their undertakings as jurors and their capacity to accept, understand and act upon directions given by the trial Judge. His Honour further stated that he was satisfied that, on balance, appropriate detailed directions could be given to the jury when the jury pool is gathered, at the time of jury selection and consistently during the trial so as to ensure that the jurors remain alert to the difficulties facing them to avoid any risk of prejudice to the applicant, and to ensure that he has a fair trial. In this light, the Judge was satisfied that there was not a serious risk that the applicant would not receive a fair trial because of the effect of publicity.
The Judge stated that he would adopt the same approach as that taken by Judge Neesham, the trial judge in Glennon. His Honour would require a larger than usual jury pool of 50 persons from which the jury may be selected at empanelment. He would then divide the jury pool in half and address each half in turn. He would identify the charges, the names of the witnesses proposed to be called by the prosecution and the names of any witnesses that the defence may wish to add and then briefly summarise the background facts. He would then ask each part of the pool whether any of them know the people named or anything about the circumstances of the case. He would reassure each part of the jury pool that they should not have any hesitation in raising any matter with him, which will always be kept confidential. The balance of the two groups would then be combined for jury selection. Subject to the submissions of counsel, the Judge stated that he intended to exercise his powers under s 6A of the Juries Act 1927 (SA) to empanel extra jurors.
The Judge further stated that after the jury was empanelled he would give a series of directions in the usual form. At the commencement and the conclusion of each day of the trial he would reiterate those matters in a brief form to the jurors and emphasise the seriousness of their oaths. Those steps acknowledged that the applicant will suffer prejudice as a result of the allegations surrounding the NCA matter. On balance, the Judge stated that he was satisfied that these corrective measures will be sufficient to obviate the possibility of there being an unacceptable and significant risk to the fair trial of the applicant. On that basis, he declined to order a permanent stay of the trial of the drug and firearms charges.
The Judge also declined to grant a temporary stay of the drug and firearms trial pending the outcome of the NCA matter. His Honour noted that the suggested commencement date of the Supreme Court proceedings in 2020 may be a generous estimate. The applicant had informed the Court that he intended to seek permission to cross-examine witnesses at the committal hearing. While recognising that the progress of the NCA matter through the courts will not lessen the controversy, the final disposition of the NCA matter in the Supreme Court, regardless of the outcome, will result in the publicity about the applicant being at its zenith, not its nadir. In those circumstances, the Judge did not accept that in the exercise of his discretion the requirement of fairness in the administration of justice would be served by the grant of a temporary stay of the drug and firearms trial.
The applicant’s submissions
The applicant submits that in accordance with the observations of Gaudron and Gummow JJ in R v Carroll,[24] and the endorsement given to their Honours’ approach by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads & Traffic Authority of New South Wales,[25] the approach to be applied on this appeal is in accordance with the principles stated by the High Court in House v The King.[26] Thus, the question is whether there has been either a process error or an outcome error.
[24] (2002) 213 CLR 635 at 657 [73] (Gaudron and Gummow JJ).
[25] (2006) 226 CLR 256.
[26] (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
The applicant submits that the Judge’s reasons reveal a process error, in that his Honour failed to take into account relevant information. He also contends that there is an outcome error, in that the refusal to grant either a temporary or a permanent stay is plainly unjust.
The applicant contends that the published materials show that for in excess of 23 years he has been subjected to adverse publicity concerning proven and unproved allegations of criminal activity said to be associated with organised crime. The allegation of organised criminal activity by commercially cultivating and trafficking cannabis in association with firearms is said to be central to the prosecution case in the drug proceedings. The drug and firearms allegations are inextricably linked to the suggestion by the press that such behaviour provides the basis for the alleged murder and attempted murder in the NCA case. In that respect, the applicant says that the relevance of the published materials goes beyond the volume and length of time over which publication has occurred.
The applicant emphasises that it is the detail of the media publicity that is important. He is alleged in the current prosecution to be the leader of a cannabis syndicate which involves family members. Entwined with the drug charges are firearms charges. Allegations to the same effect have been made repeatedly in the published material.
Furthermore, the adverse publicity about the NCA matter has been inextricably linked with the applicant’s alleged involvement in organised drug crime and often coupled with specific references to a cannabis crop. That is also the case with the publicity about the coronial inquest into the death of Detective Sergeant Bowen. Much of that publicity focussed upon the role of the applicant in a drug matter being investigated by Detective Sergeant Bowen, together with the fact that this officer had arrested the applicant on separate Commonwealth charges.
The applicant submits that the level of publicity associated with him is extensive, often adverse and, at times, disparaging. Matters of particular relevance to his application are said to be the connection between:
·the adverse publicity generally;
·familial connections relevant to the extant and previous prosecutions;
·prior connections to and convictions for cannabis and other serious drug related matters;
·prior connections to an involvement with weapons; and
·the interwoven nature of all these matters and the alleged NCA murder and attempted murder.
These matters bear upon the likelihood of the jurors being possessed of inadmissible information concerning the applicant which is not only of an adverse nature, but of an adverse nature specific to the prosecution case. This is not merely a simple case of general “bad person” reasoning that may be cured by judicial direction. The type of publicity in this case presents a very real probability of leading the jury to engage in the process of reasoning that “he’s done it before, he’ll do it again”.
The applicant further submits that the reception of inadmissible evidence of a prior conviction offends against one of the most deeply rooted and jealously guarded principles of the common law. Although the concept of “reception” relates to information received in court, the impact of the published material upon potential jurors will remain. In support of that contention, the applicant referred to the observations of Bray CJ in R v Koppen.[27]
[27] (1975) 11 SASR 182.
The High Court authorities indicate that the Court must conduct a two-stage enquiry when it is called upon to exercise the inherent power to grant a stay. At the first stage, the Court must examine whether any unfairness, injustice, prejudice or oppression has been established so as to enliven the power to grant a stay. At this stage of the enquiry, the Court must consider what mechanisms are available to redress or neutralise the complaints made by an applicant.[28] If the measures that may be taken by the Court to remedy the complaint of unfairness are limited or are not applicable, then the nature and extent of any intrusion upon the applicant’s entitlement to a fair trial must be balanced against the public interest in having those who are charged with criminal offences brought to trial.
[28] Williams v Spautz (1992) 174 CLR 509 at 519-520 (Mason CJ, Dawson, Toohey and McHugh JJ).
The applicant submits that the second stage of the enquiry requires the Court to consider how “the scales of justice tilt” after the Court has weighed the various competing considerations. In assessing the public interest, it must be borne in mind that the public has no interest in seeing the disposition of charges and conviction of those guilty of crimes if that outcome follows proceedings that have been relevantly unfair, prejudicial, oppressive or unjust.[29]
[29] Jago v District Court of New South Wales (1989) 168 CLR 23 at 33 (Mason CJ), 72 (Toohey J).
The applicant also submits that it is clear from the authorities that whether a stay should be granted is not solely concerned with the quality of the trial, but also extends to the question of whether the accused should be tried at all.[30]
[30] Herron v McGregor (1986) 6 NSWLR 246 at 254 (McHugh JA).
The applicant submits that having regard to the particular circumstances of his case, as Deane, Gaudron and McHugh JJ noted in Glennon the situation is that: [31]
the effect of a sustained media campaign of vilification and prejudgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment.
[31] (1992) 173 CLR 592 at 623-624 (Deane, Gaudron and McHugh JJ).
The applicant submits that the portrayal of him by the media over an extended period of time cannot be separated from the case he was now called to meet and no safeguard can alleviate that prejudice. The depth and detail of the significant and adverse publicity is inextricably linked with the case sought to be led by the Crown at trial. This has created a unique problem that cannot be cured by the suggestions made by Doyle CJ in McGee. There is a further unfairness because the applicant cannot avoid this problem by electing for trial by judge alone.
In support of his application for a temporary stay pending the resolution of the NCA matter, the applicant submits that an acquittal on the NCA charges would reduce the impact of adverse publicity by providing a public exoneration. Alternatively, if the applicant is convicted on the NCA charges that would lead to a minimum non-parole period of 20 years in accordance with s 47 of the Sentencing Act 2017 (SA). He is currently aged 62 years. In those circumstances, the drug and firearms proceedings would effectively become redundant. Furthermore, the applicant submits that postponement of the drug and firearms charges will have little, if any, impact on the prosecution evidence. The vast majority of that evidence comprises either listening device recordings or telephone intercept recordings. This is not a case where the memories of witnesses will fade with time.

The basis for the applicant’s contention that a process error has occurred is the suggestion that the Judge only took into account the 22 items specifically identified by the applicant. The Judge had incorrectly suggested that the applicant had not relied upon all documents included in JN2. The applicant also submits that the Judge erred by describing much of the material as irrelevant. That was an overstatement of the position. The applicant submits that there were only a small number of articles that did not assist the Court. The balance of the material remained relevant with the only question being the weight to be attached to the content. The applicant contends that the articles referred to during the course of argument were intended only to be examples which demonstrated the nature and extent of the publicity.
The applicant also submits that the Judge erred in finding that his contentions had ignored the fading of memories. Contrary to that finding, the applicant submits that the more recent adverse publicity would have built upon the base knowledge of adverse information in the minds of potential jurors. Moreover, the applicant submits that the content and style of the more recent publicity has provided a link between past criminal activity and the present, with the omnipresent overlay that there is “chilling new evidence” to implicate the applicant in drug related organised crime, albeit in the form of murder and attempted murder.
The applicant also submits that, when reaching his final conclusions, the Judge had failed to observe the pervading link between the NCA matter and the present prosecution. The example of his Honour’s erroneous reasoning was the identification of a general association with the NCA matter as being the primary issue. The applicant contends that matter goes beyond that on the basis that the publicity given to the common factual allegations between the previous drug matters, the NCA matter and the current charges, when combined with the inability of the applicant to elect for trial by Judge alone, have created an insurmountable problem.
The respondent’s submissions
The respondent submits that the contention by the applicant that the Judge had restricted his considerations to the 21 articles specifically referred to during the course of argument is not correct. It is apparent from the transcript that the Judge had made clear at the commencement of submissions that he had read the entirety of the documents contained in JN2. Furthermore, the Judge expressly stated in his reasons that he had thoroughly read all of the material contained in JN2. It is also apparent from other textual references in the Judge’s reasons that he had read all of the documents.
The argument before the Judge had proceeded on the basis that the articles highlighted by the applicant were representative of the issues raised by the entirety of the material. It must be assumed that the articles highlighted by counsel for the applicant had been selected as being representative of the issues raised in the totality of the media coverage. If there were additional significant issues raised in the articles, that fact could have been brought to the attention of the Judge.
The respondent also submits that there is no merit in the applicant’s complaint concerning the observations made by the Judge about irrelevant material contained in JN2. In that respect, the respondent notes that many of the early articles concerned the victims of the NCA bombing. Other articles have no connection to the NCA incident or any other offending. Some articles relate to the applicant but do not name him. It is only as a result of reading the compilation of material as a whole that the reader is able to make connections between the articles. The respondent submits that it cannot be assumed that a member of the general public will make connections from the articles as they are separated in time and appear in the context of other news. The respondent also notes that, in contrast to cases such as McGee, the applicant did not assist the Court by providing expert evidence of surveys of potential jury pools. There is nothing beyond common sense and life experience to support the assertions made by the applicant about prejudgment or prejudice by potential jury members.
For these reasons, the respondent submits that ground 1 of the amended notice of appeal should be dismissed, as there is no basis to the contention that a process error occurred due to the failure of the Judge to take into account relevant material. It is quite clear that the Judge did not restrict his consideration to the 21 or 22 items specifically identified by the applicant.
The respondent submits that while the District Court clearly has an implied power to stay proceedings so as to avoid an abuse of process, the exercise of that power is extraordinary because it amounts to a refusal to exercise jurisdiction. A stay will only be granted in extreme or exceptional circumstances.[32] The onus lies on the applicant to demonstrate the existence of facts which may enliven the discretion to order a stay and to show that in all the circumstances, the grant of a stay is the only remedy available to prevent an abuse of process. The onus is a heavy one.[33] Even if the facts are such as to enliven the discretion for the grant of a stay, it is still necessary to make a determination as to what the interests of justice require.[34] Proceedings should only be stayed if the Court is satisfied that an unfair trial will result in the absence of a stay. The Court must be satisfied that there are no other means of bringing about a fair trial.[35] In assessing what is required in the interests of justice the Court must weigh and balance a variety of considerations.[36]
[32] Jago v District Court of New South Wales (1989) 168 CLR 23 at 31 (Mason CJ), 60 (Deane J), 76 (Gaudron J); R v Glennon (1992) 173 CLR 592 at 605 (Mason CJ and Toohey J), 615-616 (Brennan J).
[33] Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
[34] Rona v District Court of South Australia (1995) 63 SASR 223 at 227-230 (King CJ).
[35] R v Glennon (1992) 173 CLR 592 at 605 (Mason CJ and Toohey J).
[36] Walton v Gardiner (1993) 177 CLR 378 at 395-396 (Mason CJ, Deane and Dawson JJ).
The respondent acknowledges that the publicity relating to the applicant over the past 25 or more years has been extensive. The respondent submits that this is hardly surprising given the number of crimes which have been alleged against the applicant, including those of which he has been convicted. However, the bulk of the publicity was between 1994 and 2000 with reporting recommencing around 2013 or 2014.
The respondent further submits that it was open to the Judge to conclude that this was not an extreme or singular case of the type identified by the High Court in Glennon. The adverse publicity received by the applicant does not, in the submission of the respondent, involve the “sustained media campaign of vilification and prejudgment” referred to in Glennon. In contrast to the pretrial publicity in cases such as Glennon¸ Dupas v The Queen,[37] McGee and R v Mokbel[38] the general nature of the reporting is essentially a commentary on events. It must also be recognised that there are articles that favour the applicant, e.g. the articles that refer in detail to the withdrawal of the NCA bombing charges and the insufficiency of the evidence against the applicant in relation to that matter.
[37] (2010) 241 CLR 237.
[38] (2009) 26 VR 618.
The respondent submits that a permanent stay is a remedy of last resort and the applicant must demonstrate that it is the only remedy available in order to prevent an abuse of process. The applicant must demonstrate that the risk of receiving an unfair trial was unacceptable having regard to the required balancing exercise. The Court could only reach that conclusion if it concluded that the directions given to a jury could not alleviate the serious risk of unfairness to the applicant. However, such a conclusion could not be reached in some of the most notorious and high-profile cases that have come before Australian courts.[39]
[39] The respondent refers to Murphy v The Queen (1989) 167 CLR 94 (the murder of Anita Cobby); R v Milat (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 26 February 1998) (the murderer of seven hitchhikers); Glennon (a Catholic priest and paedophile who was the object of extreme vilification on radio by Derryn Hinch); R v Ferguson (2008) 186 A Crim R 483 (a notorious paedophile) and Mokbel (a prominent Melbourne “gangland” figure who escaped from Australia during his trial and was eventually extradited).
The respondent observes that directions are routinely given to juries to decide the matter only on the basis of the evidence given in the courtroom and to put aside any knowledge they may have from elsewhere and not to undertake their own enquiries. In as case such as this, directions about guilt in relation to other alleged offences and evidence of bad character would be given as the circumstances require. Enquiries would also be made to ensure that the jury pool was not influenced by prejudgment. It must be assumed that a jury would follow the directions of the Judge. The mechanisms referred to by the Judge so as to avoid unfairness to the applicant were appropriate.
The respondent also submits that the grant of a permanent stay will effectively amount to the applicant being given continuing immunity from prosecution in relation to any future drug, firearms or organised crime offences. That would occur in circumstances where there is not an unacceptable risk of an unfair trial.
The respondent submits that there was nothing in the approach adopted by the Judge or the evidence upon which he relied to indicate that his Honour made a decision that is so unreasonable or plainly unjust as to indicate an outcome error. Permission to appeal should be refused on ground 2.
The respondent also submits that there is no justification for the applicant’s submission that the trial should be stayed because he is not entitled to elect for a trial by judge alone. In fact, there is no absolute right to elect for a trial by judge alone. That is made clear by s 7(3) of the Juries Act, which precludes such an election where two or more persons are jointly charged unless they all concur in the election. If a stay were to be granted on this ground, it would amount to a finding that a trial by jury is oppressive, unfair or likely to bring the administration of justice into disrepute. In this context, the respondent also notes that the laying of a joint information was entirely appropriate in the circumstances of this case, and the applicant has not applied for a separate trial.
In relation to the decision to refuse a temporary stay, the respondent submits that this is not a case where the notoriety of a defendant may fade with time. The Judge correctly concluded that the publicity surrounding the NCA prosecution is likely to increase rather than decrease with the passage of time. Thus, the respondent submits that a temporary stay of proceedings would be counterproductive.
While the respondent acknowledges that the fading of witness memory will not be significant due to the substantial reliance on recorded evidence and police witnesses, it must also be recognised that there are other defendants. The grant of a temporary stay would either result in the severance of the applicant’s trial from that of his co-accused, or the delay of their trial for a substantial time. In these circumstances, the respondent submits that it is not to the benefit of the applicant to delay the resolution of the present charges. Accordingly, the respondent submits that it was open to the Judge to refuse the application for a temporary stay. It cannot be said that the decision is so plainly unjust or unreasonable as to indicate error. Permission to appeal should also be refused on ground 3.
Consideration
Ground 1
I agree with the conclusion of the Judge that a significant part of the material included in JN2 is irrelevant to the stay application. I refer to the material I have mentioned at [18] to [19] above. I do not regard it as realistically possible that a potential juror could be influenced by material published some 20 to 25 years ago in interstate newspapers that had little or no circulation in South Australia. I also do not consider that there is a significant risk that a potential juror might be influenced by articles that did not name the applicant nor indirectly identify him.[40]
[40] See [20] above.
The exhibit JN2 includes some material published on the internet. As may be expected, that is primarily the case with the more recent material. This material has been extracted from newspaper websites and many, if not all, of the articles would also have been published originally in print form. In the latter circumstances, the internet material is no different to hard copies. However, a great deal of material published on the internet may remain accessible long after the original publication to anyone who chooses to conduct an appropriate search.[41] Thus, there is a risk that a juror might conduct their own online research. That risk is appropriately dealt with by the Judge’s proposed direction that jurors are not to conduct their own research.
[41] In some instances, access may be limited to paid subscribers.
I do not accept the contention by the applicant that the Judge had failed to take into account all relevant documents contained in JN2. His Honour specifically stated at two points in his judgment that he had read all of the material contained in JN2 and taken it into account. He also made the same observation at the commencement of submissions. Quite apart from those statements, it is also quite clear from his Honour’s reasons that he did not limit his consideration to the 21 or 22 documents specifically identified by the applicant.
Because the matter was reasonably arguable, I considered that permission to appeal on ground 1 should be granted. However, I concluded that ground 1 should be dismissed for the reasons set out in the preceding paragraphs.
Ground 2
The complaint made in ground 2 is that the Judge erred in refusing to grant a permanent stay. In arriving at that conclusion, his Honour quoted extensively from the judgment of Doyle CJ in McGee. The passages cited by his Honour included several passages drawn from the judgments of the High Court in Glennon. I consider that the summary by the Judge of the principles stated by Doyle CJ in McGee and by the High Court in Glennon correctly stated the relevant principles.
The facts in Glennon
I consider it helpful to state the facts in Glennon so as to place the analysis by the High Court in context. Glennon was a Catholic priest who had been convicted in 1978 of a sexual offence against a girl.[42] In 1985, he had been a prosecution witness in the trial of two young men charged with assaulting him. Glennon was cross‑examined about his earlier conviction and also an allegation that he had homosexually raped one of the defendants. The latter allegation received extensive publicity and Glennon was subsequently charged with a number of offences. He appeared before the Magistrates Court in November 1985. The next day Derryn Hinch, the presenter of a popular Melbourne radio program, launched an attack on Glennon. He repeated that attack in two further broadcasts, the last of which was transmitted in March 1986. Hinch made allegations of serious sexual misconduct and impropriety against Glennon and clearly suggested that he was guilty of the charges before the court. Hinch also referred to Glennon’s previous conviction and other charges that had not been proceeded with or where he had been acquitted.
[42] Glennon did not hold any position as a priest following the 1978 conviction; see (1992) 173 CLR 592 at 619 (Deane, Gaudron and McHugh JJ).
Hinch was convicted of contempt of court and imprisoned. His appeals failed. The High Court described the broadcasts as “one of the most serious cases of contempt of court, involving the public prejudgment of the guilt of a person awaiting trial, to have come before the courts of this country.”[43] The prosecution of Hinch, his unsuccessful appeals to the Court of Criminal Appeal and the High Court, and his term of imprisonment, received what Mason CJ and Toohey J described as “extensive and at times sensational coverage in the Melbourne media.”[44] That publicity continued for three years.[45]
[43] (1992) 173 CLR 592 at 620 (Deane, Gaudron and McHugh JJ).
[44] Ibid at 597 (Mason CJ and Toohey J).
[45] Ibid at 621 (Deane, Gaudron and McHugh JJ) citing Nathan J in the Court of Criminal Appeal.
In October 1987 Hinch was released from prison. Two months later Glennon was charged with a further 17 sexual offences against young persons. At the commencement of Glennon’s trial a County Court judge dismissed his application for a permanent stay. That application was based on a submission that Glennon could not receive a fair trial because of the prejudicial effect of the pre‑trial publicity. A judge of the Supreme Court of Victoria later refused a stay on the same ground.
Glennon’s trial was conducted in May and June 1991. A County Court judge refused a further application for a stay as he was bound by the decision of the Supreme Court and there had been no material change in circumstances. Glennon was convicted on five counts and acquitted on the remainder.
The majority of the Victorian Court of Criminal Appeal allowed an appeal by Glennon on the ground that the verdicts were unsafe and unsatisfactory because there was a substantial risk that some members of the jury had become aware of his prior conviction due to the pre-trial publicity. Glennon’s conviction was quashed and a verdict of acquittal entered.
A majority of the High Court, comprising Mason CJ, Brennan, Dawson and Toohey JJ, held that special leave should be granted and the decision of the Court of Criminal Appeal set aside.[46] The four majority Judges held that a stay will only be granted in an extreme case where there is a fundamental defect of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences. Mason CJ and Toohey J also noted that the possibility of a juror acquiring “irrelevant and prejudicial information is inherent in a criminal trial.”
Consideration of the media articles
[46] Deane, Gaudron and McHugh JJ would have refused special leave on the ground that the decision of the Court of Criminal Appeal was on a question of fact and in these circumstances the grant of special leave was not appropriate to appeal an acquittal.
I agree with the respondent’s submission that the compilation of materials presented to the Court would have a much greater effect on a reader than would be the case for a potential juror who had read the articles at the time they were published in South Australian newspapers over the last 25 or so years.
I have already indicated that I do not regard as relevant the articles published in interstate newspapers. The articles that did not name or indirectly identify the applicant are also of lesser significance. While the remainder of the articles published prior to 2015 are relevant as they have some prejudicial effect, I am not persuaded that these articles give rise to a material risk that potential jurors might be influenced by the adverse publicity about the applicant.
Focus must be placed on the more recent articles when assessing the risk that jurors may be prejudiced against the applicant because of the adverse publicity or have impermissible knowledge. Nevertheless, consideration of the contents of the press reports published from 2015 onwards must recognise that these articles continue themes present from 1994 to about 2000.

I have referred to the content of the articles published from 2015 onwards at [24] to [32]. Although it is the case that the articles published in this period concerning the current drug and firearms charges frequently described the applicant as “the NCA bombing suspect”, none of those articles suggest that the NCA bombing was motivated by the investigation of the applicant for drug offending. Of particular importance, none of the articles published since 2015 mention the applicant’s prior convictions for drug offending.
The “Mob Rule” and “Records shed new light on NCA suspect’s family” articles might arguably be taken by some readers to suggest that the applicant has Mafia or ’Ndrangheta connections. While the articles may be more prejudicial than the other material published in recent years, I consider that the measures proposed by the Judge will ensure a fair trial. I take that view for several reasons. First, neither article directly asserts that the applicant is involved in the Mafia or ’Ndrangheta. Secondly, several years have now elapsed since those articles were published in 2015 and 2016. Thirdly, neither article refers to the applicant’s past drug convictions.
The primary focus of the articles published since 2015 has been the renewed investigation of the NCA bombing and ultimately the fact that the applicant has again been charged in relation to that matter. The relatively small number of articles referring to the current drug and firearms charges do not disclose the applicant’s prior conviction for drug offences and, save for one article published in Victoria, nor do they suggest that the motive for the NCA bombing was the investigation of drug offending allegedly involving the applicant.
For these reasons, I consider that the adverse publicity received by the applicant is far removed from being an extreme or exceptional case of the type referred to by the High Court in Glennon and in Jago v District Court of New South Wales.[47] Moreover, it is significant that the very direct and repeated attacks on Glennon and the revelation of his prior conviction and other past charges, combined with the extensive publicity and public debate about the contempt charges against Mr Hinch, were not sufficient to satisfy the High Court that Glennon’s prosecution should have been stayed.
[47] (1989) 168 CLR 23.
The confidence expressed by the Judge in the operation of the jury system was entirely consistent with the views expressed by the High Court in Glennon, in Hinch v Attorney-General (Vic)[48] and in Murphy v The Queen.[49]
[48] (1987) 164 CLR 15.
[49] (1989) 167 CLR 94.
In that light, and given my assessment of the material published since 2015, I consider that the procedural steps surrounding the selection of the jury and the directions canvassed by the Judge should be more than sufficient to ensure that, notwithstanding the prejudice arising from the published material, the applicant will receive a fair trial and that there will not be an abuse of process. I note that the approach foreshadowed by the Judge mirrors that adopted by Judge Neesham at the trial of Glennon in the County Court and which was accepted by the High Court as being sufficient to ensure a fair trial.[50]
[50] R v Glennon (1992) 173 CLR 592 at 609-610 (Brennan J).
While the applicant may well have elected for trial by judge alone if that option were available to him, in light of my conclusion that the measures proposed by the Judge will be sufficient to ensure a fair trial, his inability to elect for trial by judge alone did not affect my conclusion that the Judge did not err.
Because the case advanced by the applicant was clearly arguable, I considered that permission to appeal on ground 2 should be granted. However, as I was not persuaded that the Judge erred in refusing a stay, I concluded that the appeal should be dismissed.
Ground 3
I consider that the Judge was correct in his conclusion that the adverse publicity surrounding the NCA prosecution is likely to increase rather than decrease as time passes even if the applicant is acquitted. Thus, the grant of a temporary stay may exacerbate, rather than reduce, the matters complained of by the applicant. I therefore do not regard as correct the applicant’s contention that the Judge erred in declining to grant a temporary stay pending the finalisation of the NCA matter.
While I considered that permission to appeal should be granted on ground 3, because the Judge’s decision did not reveal either a process error or outcome error, I concluded that ground 3 should be dismissed.
Conclusion
For these reasons, I joined in the decisions to grant permission to appeal and to dismiss the appeal.
DOYLE J: I agree with the reasons of Parker J. They reflect my reasons for joining in the orders the Court made on 18 June 2019.